F I L E D

United States Court of Appeals

Tenth Circuit

JUN 23 2004

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JASON ROBERT LOPEZ,

Defendant-Appellant.

No. 02-1142

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 99-CR-362-WM)

Robert M. Russel, Assistant United States Attorney (John W. Suthers, United

States Attorney, with him on the brief) Denver, Colorado, for Plaintiff-Appellee.

Darcy M. Goddard (Amy L. Padden with her on the briefs), of Wheeler Trigg &

Kennedy, P.C., Denver, Colorado, for Defendant-Appellant.

Before TACHA, Chief Circuit Judge, BRORBY, Senior Circuit Judge, and

O'BRIEN, Circuit Judge.

O’BRIEN, Circuit Judge.

Jason Robert Lopez was convicted by a jury on March 15, 2000, of being a
1

 Lopez also filed a request to hold this appeal in abeyance pending the Supreme

Court’s decision in Massaro v. United States, 538 U.S. 500 (2003), determining the

appropriate vehicle for bringing a claim of ineffective assistance of counsel, a decision

pending when he filed his appeal. We denied his request, but note Massaro, decided

April 23, 2003, holds “an ineffective-assistance-of-counsel claim may be brought in a

collateral proceeding under § 2255, whether or not the petitioner could have raised the

claim on direct appeal.” Id. at 504.

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felon in possession of two firearms in violation of 18 U.S.C. § 922(g). In July

2000, he filed a motion for a new trial, claiming the Government failed to

disclose exculpatory impeachment evidence as required by Brady v. Maryland,

373 U.S. 83 (1963), United States v. Bagley, 473 U.S. 667 (1985), Giglio v.

United States, 405 U.S. 150 (1972), and their progeny. The district court held

several hearings and ultimately denied the motion. Lopez was sentenced to

eighty-four months in prison. He appeals from the denial of his motion for a new

trial and claims the district court erroneously instructed the jury on the elements

of constructive possession.1

 Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

DISCUSSION

Four people and an infant child lived in a home in Colorado Springs,

Colorado: Debra Ruiz, the legal renter; Gabriel Ruiz, her son; Alissa Gonzales,

Gabriel’s girlfriend; Tracy Batts, Alissa’s mother; and Randi, Tracy’s infant

daughter. Lopez was a friend of Gabriel Ruiz’s and occasionally spent the night

at the home. On June 17, 1999, federal agents executed a search warrant at the
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home and seized a substantial amount of stolen property, a number of firearms

from various locations in the home and some ammunition. In particular, agents

seized an SKS assault rifle and a Tec-9 handgun from the room where Lopez

allegedly slept—the “nursery.” Lopez, who was not present at the time of the

search, was charged with illegal possession of the assault rifle and handgun.

I. Brady Violation

Prior to trial, Lopez filed a Brady/Giglio motion requesting disclosure of

“promises of leniency, plea bargains or rewards of any nature given to . . .

witnesses . . . .” (R., Vol. I, Doc. 19 at 2.) The Government answered,

specifically stating “no promises of leniency” were made to any witness. (R.,

Vol. I, Doc. 21 at 2.)

After trial, but prior to sentencing, it came to the attention of Lopez that the

testimony of two of the Government's witnesses, Debra Ruiz and Alissa Gonzales,

may have been motivated or influenced by promises and/or threats that were not

disclosed to him in spite of his written request. On July 10, 2000, Lopez filed a

motion for a new trial, specifically alleging both women had been threatened with

prosecution unless they cooperated against him. Additionally, he claimed they

both were promised that Gabriel Ruiz would receive lenient treatment if they
2

 Gabriel was facing federal charges for illegal possession of two weapons—a

Norinco found under his bed during the search and a handgun found in his car when he

was arrested.

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would testify against Lopez.2

 A hearing was held on the motion on December 12,

2000. The court asked for further briefing and took the matter under advisement. 

In November 2001, before a decision was rendered, Lopez expanded his new trial

motion to include a claim that the Government had failed to disclose a written

report containing exculpatory material. On November 28 and December 6, 2001,

hearings were held to explore that allegation. On December 21, 2001, the court

orally announced its decision denying the motion for a new trial.

A. Standard of Review

“If a new trial motion is based on an alleged Brady violation, we review the

district court’s decision de novo.” United States v. Combs, 267 F.3d 1167, 1172

(10th Cir. 2001). In order to establish a Brady violation, Lopez “must

demonstrate that ‘(1) the prosecution suppressed evidence; (2) the evidence was

favorable to the accused; and (3) the evidence was material to the defense.’” 

Scott v. Mullin, 303 F.3d 1222, 1230 (10th Cir. 2002) (quoting Banks v. Reynolds,

54 F.3d 1508, 1516 (10th Cir. 1995)). Because “the primary consideration under

Brady is fairness[,]” we will reverse the district court only if the suppression of

evidence denied the defendant a fair trail. Banks, 54 F.3d at 1516 (citations

omitted).
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Lopez’s Brady claim, however, is predicated on the district court’s

preliminary factual findings as to whether threats or promises were made. We

review the district court’s findings of fact for clear error. United States v. Pearl,

324 F.3d 1210, 1215 (10th Cir.), cert. denied, 539 U.S. 934 (2003). After

considering the entire evidence, the reviewing court will determine a finding is

“clearly erroneous” when “it is left with the definite and firm conviction that a

mistake has been committed.” United States v. Colonna, 360 F.3d 1169, 1175

(10th Cir.) (quoting United States v. United States Gypsum Co., 333 U.S. 364,

395 (1948)), petition for cert. filed (April 12, 2004). “We cannot duplicate the

factfinding role of the trial court and ‘[w]here there are two permissible views of

the evidence, the factfinder’s choice between them cannot be clearly erroneous.’”

Id. (quoting Anderson v. Bessemer City, N.C., 470 U.S. 564, 573 (1985)). 

B. Suppression of Evidence 

Lopez argues “the district court erred when it did not complete the analysis

required under Brady, Giglio, and Bagley . . . .” (Appellant’s Reply Br. at 10.) 

He contends that, had the district court conducted a full analysis, it would

mandate reversal of Lopez’s conviction and require a new trial. We disagree. 

The district court’s oral ruling denying the motion for a new trial was

preceded with a summary of the extended proceedings and conflicting testimony

before the court. It recognized Gonzales and Ruiz’s testimony alleging the
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investigating officers had threatened to arrest them unless they cooperated. It

further noted Ruiz’s attestation that she was told her testimony against Lopez may

benefit her son in his case. However, these allegations were categorically denied

by each of the investigating officers. As to the allegations that Gonzales and Ruiz

were threatened with arrest, Detective Charles Yeater was the only investigator

who recalled mentioning the subject. He stated that shortly after they began

searching the premises, he told “Alissa Gonzales, Tracy Batts and Debbie Ruiz

that all of them could be arrested because we were finding stolen property and

drugs in about every room of the house . . . but I continued on to let them know

that I really didn’t think that Alissa or Debbie were actually involved in any of it

as far as the stolen property.” (R., Vol. 7 at 99.) Upon further questioning,

Yeater conclusively stated he did not tell them their arrest was “contingent in any

way upon their cooperation or refusal to cooperate.” (Id.)

Lopez claims the district court made findings of fact when it noted “there’s

evidence that the threats were made” and “one could infer that a deal was struck

with Gabriel Ruiz and that arguably this would show that he was being rewarded

for the testimony of Alissa Gonzales and Debbie Ruiz.” (R., Vol. 14 at 8.) A

careful reading of the entire hearing transcript instead reveals these observations

are a reflection of the court’s oral consideration of conflicting evidence, not

factual findings. It painstakingly weighed this evidence and determined Lopez
3

 Of more concern to the district court was Lopez’s allegation, brought while the

motion for new trial was pending, that the Government failed to provide a police report

which stated a confidential informant had said Gabriel Ruiz also carried a Tec-9, the same

type of gun that was the subject of Lopez’s conviction. After some confusion, however,

the parties agreed the information was disclosed to defense counsel prior to trial. Lopez

does not appeal the district court’s determination that this disclosure was sufficient under

Brady.

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had failed to show by a preponderance of the evidence that there was any deal,

and consequently, there was no Brady violation. Because there is abundant

evidence in the record to support this conclusion, it is not clear error. Moreover,

after finding Lopez failed to demonstrate the Government suppressed evidence,

the trial court need go no further to effectively dispose of Lopez’s Brady claim.3

II. Jury Instruction

Lopez also complains the district court improperly instructed the jury

regarding constructive possession. Jury Instruction No. 30, provided in relevant

part:

A person who, although not in actual possession, knowingly has both

the power and the intention at a given time to exercise dominion or

control over a thing, either directly or through another person or

persons, is then in constructive possession of it.

(R., Vol. 6 at 333.) Lopez contends this instruction was incomplete and

inaccurate because constructive possession is limited to circumstances when a

person “knowingly has ownership, dominion, or control over the [contraband] and

the premises where [it is] found.” United States v. Hager, 969 F.2d 883, 888

(10th Cir.) (emphasis added), cert. denied, 506 U.S. 964 (1992), abrogated on
4

 But care is required. “In cases involving joint occupancy of a place where

contraband is found, mere control or dominion over the place in which the contraband is

found is not enough to establish constructive possession.” United States v. McKissick,

204 F.3d 1282, 1291 (10th Cir. 2000) (emphasis added) (internal quotations omitted). 

Rather, “the government is required to present ‘direct or circumstantial evidence to show

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other grounds by Bailey v. United States, 516 U.S. 137 (1995). Lopez argues the

district court erred by omitting from the instruction the words “and the premises

where it is found.”

Because he did not object to the language defining constructive

possession—in fact, he requested it—we review for plain error. Fed. R. Crim. P.

30(d) & 52(b); United States v. Fabiano, 169 F.3d 1299, 1302 (10th Cir. 1999);

(R. Vol. I, Doc. 38). But the standard of review matters not at all. Under any

standard, the omission was not error.

In United States v. Culpepper, we reaffirmed a twenty-year-old holding that

a person has constructive possession of an item when he “knowingly hold[s] the

power and ability to exercise dominion and control over it.” 834 F.2d 879, 881

(10th Cir. 1987) (citing United States v. Massey, 687 F.2d 1348, 1354 (10th Cir.

1982); United States v. Zink, 612 F.2d 511, 516 (10th Cir. 1980); Amaya v. United

States, 373 F.2d 197, 199 (10th Cir. 1967)). We restated the “dominion and

control over the item” rule in United States v. Parrish and added that, in some

instances, “[e]xercising dominion and control over a residence where contraband

is concealed may constitute constructive possession of the narcotics.”4

 925 F.2d
some connection or nexus individually linking the defendant to the contraband.’” Id.

(quoting United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir. 1998)).

5

 See also United States v. Blue, 957 F.2d 106, 107 (4th Cir. 1992) (constructive

possession when evidence shows “ownership, dominion, or control over the contraband

itself or the premises or vehicle in which the contraband is concealed”) (emphasis added)

(internal quotations omitted); United States v. McKnight, 953 F.2d 898, 901 (5th Cir.)

(same), cert. denied, 504 U.S. 989 (1992); United States v. Wainwright, 921 F.2d 833,

836 (8th Cir. 1990) (same).

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1293, 1296 (10th Cir. 1991), abrogated on other grounds by United States v.

Wacker, 72 F.3d 1453 (10th Cir. 1996).

After Parrish, a panel of this circuit stated that “[g]enerally, a person has

constructive possession of narcotics if he knowingly has ownership, dominion or

control over the narcotics and the premises where the narcotics are found.” 

Hager, 969 F.2d at 888 (emphasis added). For this proposition, the Hager panel

cited only Parrish. However, in suggesting a two-part test that lists in the

conjunctive the requirements that a person have ownership, dominion or control

over (1) the contraband and (2) the premises where it is found, Hager departed

from both Parrish and the constructive possession standards of other circuits that

use similar language but list the factors in the disjunctive.5

Since Hager, many of our cases have repeated this erroneous general

statement, although none of them have been decided based on a conjunctive

requirement of dominion over an item and the premises. See, e.g., Colonna, 360

F.3d at 1178-79; United States v. Scull, 321 F.3d 1270, 1284 (10th Cir.), cert. 
6

 “We cannot overrule the judgment of another panel of this court. We are bound

by the precedent of prior panels absent en banc reconsideration or a superseding contrary

decision by the Supreme Court.” In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per

curiam) (citations omitted), cert. denied, 513 U.S. 807 (1994).

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denied sub nom., 124 S. Ct. 175 (2003); United States v. Lott, 310 F.3d 1231,

1247 (10th Cir. 2002), cert. denied, 538 U.S. 936 and cert. denied, 538 U.S. 991

(2003); United States v. Hishaw, 235 F.3d 565, 571 (10th Cir. 2000), cert. denied,

533 U.S. 908 (2001). However, in other recent cases, we have cited the

Culpepper definition, finding constructive possession where the defendant has the

power to exercise control and dominion over the item alone. See, e.g., United

States v. Simpson, 94 F.3d 1373, 1380 (10th Cir.), cert. denied, 519 U.S. 975

(1996); United States v. Sullivan, 919 F.2d 1403, 1430 (10th Cir. 1990). In any

event, Culpepper, which pre-dates the confusion, is the law in this circuit;6

therefore, constructive possession exists where the defendant has the power to

exercise control or dominion over the item. Culpepper, 834 F.2d at 881. Control

or dominion over the premises where the item is found is therefore a factor,

Parrish, 925 F.2d at 1296, but not a requirement, for finding constructive

possession of the item itself. The district court's omission of the words “and the

premises where it is found,” whether intentional or accidental, was not error.

For the aforementioned reasons, we AFFIRM the district court’s denial of

a new trial.